November 2011 Archives

Victim's Family Speaks Out After Death Sentence Reprieve: Meghan Kalkstein of KATU News (OR) reports the family members of Gary Haugen's first victim are speaking out against Oregon Governor John Kitzhaber's decision to grant Haugen a reprieve. Haugen was scheduled to be executed December 6. Mary Archer, Haugen's first victim, was 38-years-old when he killed her in 1981. While Haugen wasn't put on death row for his first crime (he was given a death sentence after killing another inmate), Archer's family members say what Kitzhaber did is still an injustice to all of his victims. Ard Pratt, Archer's former husband, said Kitzhaber called him before he made the announcement. "When he told me that, I told him exactly what I thought of what he was
doing, and the fact that he's a coward for not following through," Ard
Pratt said. The family says the Governor could have taken action sooner, instead of waiting weeks before the scheduled execution. "... he went right ahead and let everybody get dragged through the mud," said Kathy Pratt, Mary Archer's daughter. They worry that the victims associated with Haugen will have to relive the pain if they have to go through this process again. "I would really rather not but it's an obligation that I have to do that to see that justice is finally done," Ard Pratt said.

Ohio Bill Would Require Victim Notification of Parole Hearings: Marc Kovac, the Capital Bureau Chief for Dix Communications, reports legislation introduced in the Ohio Senate would require prosecutors to inform crime victims and their families in advance of their perpetrators parole hearings. The bill has been titled Roberta's law in memory of a young girl who was raped and stabbed to death. Her family was not notified when her assailant was paroled, and instead her father read about it in the newspaper. Her family did not have the opportunity to speak at the parole hearing. Under current state law, prosecutors are only required to contact victims about parole hearings for offenders if victims request to be notified. Under the proposed legislation, prosecutors would be required to contact victims 60 days before parole hearings, parole board recommendations on early release, or sentence commutations regardless of whether notifications were requested. The legislation would also include voluntary manslaughter in the list of sexually oriented offenses that comply with sex offender registration requirements.

As The Day with No Name looms on December 25, and we dash across the snow in a one-horse open vehicle, we ought not forget to display our Holiday Tree.

Gov. Lincoln Chafee of Rhode Island, the man who recently declined to turn over a killer for federal prosecution because the federal government has the death penalty (as Kent noted here), has done it again.

Stephanie Pappas reports at LiveScience, "Babies as young as 8 months want to see wrongdoers punished, a new study finds."

A recurring philosophical debate among criminal law theorists involves retribution versus utilitarianism. Do we punish people to achieve practical goals such as deterrence or rehabilitation, or do we punish because the slimeball just plain deserves it? (Among my friends in academia, Robert Blecker is the chief retributivist, while Doug Berman is more of a utilitarian.)

The belief that punishment for wrongdoing is right in itself, regardless of whether it produces any practical benefit, is a deep-seated one.

Defense Expert in Child Molestation Case Calls Child Sexual Abuse Accommodation Syndrome "Junk Science": Andy Furillo of The Sacramento Bee reports University of Nevada professor William O'Donohue testified as a witness for Tommy Gene Daniels in Sacramento Superior Court, where he called child sexual abuse accommodation syndrome "a fringe theory." Daniels, a Rio Linda pastor, is facing 12 counts for molesting five girls in his home between 2003 and 2005. Earlier in the trial, Deputy District Attorney Kimberly Macy called UC Davis School of
Medicine pediatrics professor Anthony J. Urquiza to testify as an expert on the CSAAS theory. Urquiza testified that CSAAS explains why children are prone to keep their molestation secret, and that the tenets of the theory help to understand the tendency for victims to delay reporting allegations of sexual abuse, their high rate of recanting their stories, and the victims' sense of helplessness and entrapment. O'Donohue did not necessarily disagree with the substance of what the CSAAS theory seeks to explain, but attacked the theory's adherence to the scientific method. O'Donohue also testified that there are currently no percentages available about children who lie about being molested. O'Donohue has made several hundred thousand dollars as a defense expert over the past 25 years.

DNA Helps Identify Another John Wayne Gacy Victim: Frank Main of the Chicago Sun Times reports the remains previously labeled Victim No. 19, because he was the 19th victim taken from the crawl space of serial killer John Wayne Gacy's home, have been identified as belonging to William "Bill" George Bundy. Bundy was reported missing in October 1976. The Cook County sheriff's office announced in October a renewed effort to use DNA to put names to the unidentified victim's found on Gacy's property in unincorporated Norwood Park Township as part of a push to solve dozens of unsolved cold cases. Bundy's brother and sister called a hotline set up by Cook County Sheriff Tom Dart and submitted DNA samples that were matched to DNA taken from the victim's bones. "To help bring some sort of closure and maybe peace to a family is something we are all hopeful for," Dart said Tuesday.

Norway Mass Killer Found Insane: Karl Ritter of The Associated Press reports Norway prosecutors said Tuesday confessed mass killer Anders Behring Breivik belongs in psychiatric care instead of prison after a mental evaluation found him legally insane during his bomb and shooting rampage that killed 77 people in July. The court-ordered assessment, written by two psychiatrists who spent a total of 36 hours talking to Breivik, will be reviewed by a panel from the Norwegian Board of Forensic Medicine before the Oslo district court makes a ruling on his mental state. Prosecutors insisted the psychiatric report show Breivik is living in a "delusional universe." Anders Forsman told the AP, "He seems to have carried out the killings in a rational way. He is
an efficient killing machine." Prosecutor Inga Bejer Engh said that if Breivik is declared insane by the courts, he would be given three-year terms of psychiatric care that could be extended as long as necessary.

This morning the Supreme Court appointed Miguel Estrada to argue in support of the judgment below in the crack sentencing cases, Dorsey v. United States and Hill v. United States. The Court does that when the government repudiates a point decided in its favor by the lower court. They consider it unseemly to reverse a lower court decision without someone arguing in its favor, but they nearly always do reverse in this situation. (I'm not aware of any affirmances, but I'll hedge with "nearly.")

Adam Liptak has this story in the NYT on the cases (see update below):

Selling cocaine in crack form used to subject offenders to sentences 100 times as long as those for selling it in powder form. The new law, the Fair Sentencing Act of 2010, reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010.

Um, no. It wasn't the sentences that were 100 times as long. The controversial "ratio" refers to the amount of cocaine that triggers the longer sentence, as indicated later in the story. (See also this post.)

The usual rule is that new laws do not apply retroactively unless
Congress says so, Judge Evans wrote, and here Congress said nothing.

Edward Dorsey pleaded guilty in June 2010 to possessing 5.5 grams of
crack cocaine in 2008 with the intent to distribute it. Under the law in
effect at the time of his offense and his plea, and thanks to an
earlier conviction, he was subject to a mandatory minimum sentence of 10
years. Under the new law, the mandatory sentence would not have come
into play for fewer than 28 grams, and Mr. Dorsey would probably have
received a sentence of three or four years.

The sentence ratio is thus 3.3 to 2.5, not 100.

Update: As federalist notes in the comments, the article has subsequently been corrected.

The North Carolina Senate yesterday approved the repeal of the state's misguided, so-called Racial Justice Act and sent the bill to the governor. This act is not really about race and is contrary to justice. It's real purpose is to further bog down the death penalty in unproductive litigation.

The text of the bill is here. Craig Jarvis has this report for the Charlotte Observer.

The most remarkable thing about studies of race and the death penalty is that the opponents' own studies refute the form of bias of primary concern -- discrimination against minority defendants. Given the general ability of studiers to find anything they want, this null result contrary to the agenda is truly quite amazing.

With their primary argument refuted by their own studies, they fall back on a claim that the death penalty is discriminatorily withheld in the cases of minority victims. Even if that were true, though, it would not show that anyone is on death row who does not deserve to be there. That would show that there were injustices in black-victim cases where murderers who deserve death got off with life. There is nothing we can do to correct such injustices in the past. All we could do is make changes to correct it in the future.

But the studies do not really show what they claim. In study after study, the claimed "race-of-victim effect" drops down into the statistical grass when legitimate factors are added to the mix. See my Engage article and the London video.

Fresno Co. Jail Out Of Room For Parole Violators: Kurtis Alexander of The Fresno Beereports
Fresno County no longer has any room in its local jails for parole
violators. Orders to not lock them up began Thanksgiving Day and the jail
had already been releasing inmates early due to lack of space. The Sheriff's order does not apply to parolees who commit new crimes, but to those who break the terms of their parole. Having to turn away parolees reinforces concerns that
criminals are not serving the time they should be. "They're out in the
community and they're violating their parole, and
when there's no consequence for violating, that's going to be a public
safety issue," said Kelly Keenan, chief assistant district attorney for
Fresno County. Fresno County is not the only one struggling to
house inmates, and other counties may have to take similar measures.

North Carolina Racial Justice Act in Jeopardy: Anne Blythe of McClatchy Newspapers reports North Carolina state lawmakers are considering whether to repeal or tweak the state's Racial Justice Act. This act allows people facing the death penalty to present evidence that racial bias played a role in their case. One argument in the removal of this law is the use of statistics as evidence. Prosecutors argue that the way the law is written allows for statistics to be used from other counties and judicial districts to challenge their sentences. An idea being brought to the table is to tweak the law to allow judges to consider only those statistics from the district in which the inmate was tried. The House voted to nullify the law this summer. A Senate judiciary committee is set to take up the topic Monday afternoon, which could lead to a vote in the Senate this week.

Proposed New Hampshire Law Makes All Murders Death Penalty Eligible: Lynne Tuohy of The Associated Press reports proposed legislation in New Hampshire would expand the state's death penalty to include any intentional murder. New Hampshire state law currently allows prosecutors to seek the death penalty under seven circumstances. The bill would not require prosecutors to pursue a death sentence. Representative Greazzo (R) stated, "If it's going to be too expensive to prosecute and execute every murderer, it shouldn't apply to anyone. Everyone should be treated equally under the law, even murderers.'' The bill was passed by the Criminal Justice and Public Safety Committee 11-6 last month. The House is expected to vote on the measure in January.

Inmate Criticizes Oregon Governor Over Reprieve: The Associated Press reports Oregon death row inmate Gary Haugen criticized Oregon Governor John Kitzhaber for giving him a reprieve, saying he did not have the guts to execute him. Haugen has voluntarily given up his legal challenges and says he wants to be executed in protest of the criminal justice system. However, Kitzhaber stated he wouldn't allow anyone to be executed while he remained in office. Haugen stated he believes the Governor acted on his personal beliefs rather than those of the Oregon voters, who reinstated the death penalty in 1984. "I'm going to have to get with some serious legal experts and figure out
really if he can do this," Haugen said.

The Supreme Court today took up a case of the application of the Apprendi rule (jury trial of facts that increase maximum sentence) to fines in the case of Southern Union Co. v. United States, No. 11-94. First Circuit opinion is here.

The Court also took up a case on harmless error analysis, Vasquez v. United States, No. 11-199. Seventh Circuit opinion is here.

The Court took up and consolidated two cases, Dorsey v. United States, No. 11-5683 and Hill v. United States, No. 11-5721, relating to the reduction in crack cocaine sentencing. Doug Berman has this post at SL&P.

The Court turned down the case of Faulkner v. United States, No. 11-235. The police had stopped Faulkner without probable cause but then discovered an outstanding warrant. The Eighth Circuit held the evidence obtained in the subsequent search of the car was admissible. Wong Sun, purged taint, and all that. In footnote 4, the Eighth noted the then-recent grant of certiorari in Tolentino v. New York, but the high court subsequently dropped that case. (CJLF brief here.)

I generally look with disdain on the Black Friday shopping madness and make a point of avoiding it, but this year it did have redeeming social value in, of all places, San Francisco. Kevin Fagan reports in the Chron:

Bargains and a pretty holiday tree trumped politics Friday night.

Occupy SF activists had hoped to keep shoppers out of downtown San
Francisco stores to protest corporate greed, but no matter how hard they
yelled, shoppers shoved right on by.

You can defy police, mayors, and assorted other authority figures and sometimes get away with it, but try to stand in the way of Black Friday shoppers, and you just get swatted like a fly.

Riverside County to Charge Offenders for Jail Time: Phil Willon of the Los Angeles Times reports starting in December, Riverside County will bill criminals in county lockups up to $142 a day. Already in California, Placer County charges inmates up to $118 a day, and Madera County $73 a day. In accordance with state law, a judge must first determine that a defendant has the ability to pay before the county can seek an incarceration fee. Riverside County Supervisor Jeff Stone acknowledges that most convicted criminals will not be able to pay but estimates that up to 25% may be able to pay some amount, which could bring in at least $6 million a year to the county. "In these very challenging economic times, every dollar counts for
counties, especially when you're $80 million in the hole," Stone said.
"If you do the crime, then you're going to do the time and you're going
to pay the dime."

Justice Department Sues Utah Over Immigration Law: Josh Loftin of The Associated Press reports the U.S. Justice Department filed a lawsuit Tuesday challenging Utah's immigration enforcement law, signed by Utah Governor Gary Herbert in March. The law requires those arrested for serious crimes, ranging from certain drug offenses to murder, to prove their citizenship and gives police the discretion to to check citizenship status on traffic infractions and
other lesser offenses. The Justice Department argues that Utah's enforcement law preempts
federal authority and could lead to the harassment and detention of
authorized visitors and American citizens. Attorney General Eric Holder in a statement, "The federal government is the chief enforcer of immigration laws ... it
is clearly unconstitutional for a state to set its own immigration
policy." Other states that have been sued by the Justice Department after passing strict enforcement laws are Arizona, Alabama, and South Carolina.

Pennsylvania Governor Signs Two Death Warrants: The Associated Press reportsPennsylvania Governor Tom Corbett has signed death warrants for two inmates on death row in the state, Kenneth Hairston and Ralph Birdsong. Hairston was convicted of killing his wife and autistic son in 2001. Birdsong is set to be executed for killing two people in 1988. Both executions are scheduled for January. Pennsylvania has only executed three people since the U.S. Supreme Court restored the death penalty in 1976.

Court Upholds Georgia's Standard of Proof for Condemned Inmates: Bill Rankin of the Atlanta Journal-Constitution reports the 11th U.S. Circuit Court of Appeals in a 7-4 decision upheld Georgia's standard that an inmate must prove they are mentally disabled beyond a reasonable doubt to be ineligible for execution. The Georgia Supreme Court also recently upheld the state's standards. Judge Frank Hull, writing for the majority, said when the U.S. Supreme Court barred the execution of the mentally disabled in 2002, it left it up to the states to develop their own guidelines. Since there is no U.S. Supreme Court precedent to the contrary, federal law "mandates that this federal court leave the Georgia Supreme Court decision alone -- even if we believe it incorrect or unwise." A lawyer involved in the case said the ruling will be appealed to the U.S. Supreme Court.

William Yardley has this article in the New York Times on the Governor of Oregon's blocking of the enforcement of the death penalty in that state.

Noting the length of time many inmates spend on death row, often more
than 20 years, [Gov. Kitzhaber] said Oregon had an "unworkable system that fails to
meet basic standards of justice." He said there was a wide sense the
death penalty process was flawed but that the state had "done nothing;
we have avoided the question."

* * *

"If the review system is broken such that nobody but volunteers are
being executed, the answer is to fix the review system," said Kent S.
Scheidegger, the legal director for the Criminal Justice Legal
Foundation, which supports the death penalty.

Mr. Scheidegger said the authority some governors had to commute or
delay death penalty sentences "is given for the purpose of correcting
injustices in individual cases. It's not given for the purpose of
negating an entire law."

Oregon Governor Puts Moratorium on Death Penalty: The Associated Press reports Oregon Governor John Kitzhaber Tuesday imposed a moratorium on the death penalty in the state for the remainder of his term, which ends in January 2015. Kitzhaber says he is morally opposed to capital punishment. This decision comes as Oregon prison officials have been preparing for the December 6 execution of Gary Haugen, a twice-convicted murderer.

More Ex-Cons Now Unmonitored in Ohio: Randy Tucker of Dayton Daily News reports the state of Ohio accounted for about 17% of the more than 14,700 former state prisoners released from parole nationwide last year. Only Illinois discharged more parolees. This significant decline in Ohio's parole population is largely the result of a November 2009 Ohio Supreme Court decision that voided parole for parolees who were not properly informed of the conditions of their parole at their sentencing. U.S. District Judge Walter Rice said that fewer people returning from prison on parole in Ohio is also due to "changes in the law a number of years ago that simply require parole to be a condition of release for fewer prisoners."

Jared Loughner's Lawyers Appeal Forced Medication Decision: The Associated Press reports lawyers for Jared Loughner filed an appeal Monday challenging a federal court's decision allowing prison doctors to forcibly medicate him. Loughner, the suspect in a Jan. 8, shooting spree in Tucson which killed 6, is being held at a Missouri prison facility where therapists are working to make him competent to stand trial. In Monday's brief Loughner's lawyers said he had been denied a prompt review for the "four- to five-drug cocktail currently forced on him" by the federal court. The opening brief by Loughner's lawyers challenging the
ruling wasn't due until November 28, and it was unclear why it was filed a week early. Prosecutors have until December 28 to file their opening brief on the subject.

Inmates Harass Victims Via Facebook: Don Thompson of The Associated Press reports prison inmates are taking to Facebook to find their victims and accusers, and to intimidate witnesses. Lisa Gesik receives friend requests and messages from her ex-husband, who is currently in prison for kidnapping her and her daughter. "It's just like being victimized all over again," Gesik said. Correction authorities say like in Gesik's case it is difficult to determine for sure who is sending the material, and the few people who are caught rarely face serious consequences. The ability for inmates to have this kind of contact has grown with the number of smart phones smuggled into prisons. Six years ago 261 cell phones were found inside California prisons. This year 12,625 were found in just 10 months. Social networks cut out the middle man, where in the old days to get around no-contact orders prisoners would have to enlist a relative or friend to carry out the harassment or intimidation. "In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney whose office prosecuted Gesik's ex-husband, Michael Gladney. Prison officials in California are working with Facebook to identify inmate accounts and take them down, but usually that only happens after the damage has been done.

Connecticut Upholds Death Penalty: Dave Collins of NBC Connecticut reports the Connecticut state Supreme Court upheld on Monday both the state's death penalty law and the death sentence of Todd Rizzo. Rizzo was convicted of killing a 13-year-old boy with a sledgehammer in 1987. Rizzo told police that he had straddled the boy "like a horse" and hit him 13 times with the three-pound sledgehammer because he wanted to know what it felt like to kill somebody. His lawyers had challenged Rizzo's conviction and the legality of the death penalty under Connecticut's Constitution. Rizzo is one of ten men on death row in the state.

[A] new report in the journal Psychological Science, which
claims to show "how unacceptably easy it is to accumulate (and report)
statistically significant evidence for a false hypothesis."

...[T]wo
scientists from the Wharton School of Business at the University of
Pennsylvania, and a colleague from Berkeley, argue that modern academic
psychologists have so much flexibility with numbers that they can
literally prove anything.

Kent has been doing a better job than I of covering OWS. This is largely because Kent is more industrious, and industry is what it takes to keep up with the ever-lengthening list of crimes and other assorted bad behaviors going on.

Still, it's not all bad behavior. Some of it is the sort of refinement you'd expect from......well.......from one of those execrable one percenters who is (gasp!) living high on the hog by, of all malevolent things, having a successful job.

When I ran across this story, the very first thing I thought of was the Black Sea mansions Soviet commissars managed to get ahold of while working for The Good of The Masses.

The names change, the venues change, and economic systems change, but what doesn't change is the fact that people who have talent come out ahead of people who don't.

Exeter Devon, UK: The results of a one year psychological study
conducted by Dr. M. Shuttlecock, a noted London psychologist, has been
published in the Surrey Psychological Observational Obsessive Functions
(SPOOF) journal. The study investigated whether there is a relation
between British football (soccer) and crime.

Just how low can the Occupy [Whatever] movement sink? CBS New York reports:

Some grade school students were forced to walk a gauntlet of screaming "Occupy Wall Street" protesters just to get to school on Thursday.

It was a wild day in lower Manhattan for most everyone involved, including elementary school children who had to brave the mayhem just to get to class on the other side of Wall Street.

In the middle of thousands of protestors yelling and chanting -- some kicking and screaming - CBS 2's Emily Smith found little school kids trying to get to class. Nervous parents led them through the barriers on Wall Street. The NYPD helped funnel the children, anything to ease their fears while some protestors chanted "follow those kids!"

Propensity for crime changes with age, in part because of physical changes and in part because of experiences we have along the way. One major attitude-changing life event is having children. Is parenthood a factor in the decline of criminality with age? So find Kerr, Capaldi, Owen, Wiesner, and Pears in Changes in At-Risk American Men's Crime and Substance Use Trajectories Following Fatherhood, Journal of Marriage and Family, v.73, pp. 1101-1116 (Oct. 2011). Here is the abstract:

2002 Death Sentence Stands: On Thursday, a federal appeals court rejected the August decision (reported here) made by a three-judge panel to overturn the 2002 death sentence of Marvin Gabrion. The panel's decision was based on the jury not being told about Michigan's longstanding ban on capital punishment. Gabrion was able to receive the death penalty because the body of his victim was found on federal land. The 6th U.S. Circuit Court of Appeals will now hear the case. Rina Miller of Michigan Radio has this story.

Cold-Blooded Contract Killer Faces Death Penalty: Jack Dolan of the L.A. Times reports that on Thursday James Fayed, who was convicted earlier this year for the 2008 contract killing of his wife, was sentenced to death in Los Angeles County. Fayed received the death penalty for first-degree murder and 25 years to life for the conspiracy to commit murder. Fayed's attorney, Steve Meister, argued the futility of imposing the death sentence in California "where condemned inmates live for decades and many die of natural causes." The wife's brother said it is hard for family members to find complete peace with Fayed alive.

MassachusettsHouse Passes Habitual Offender Legislation: Benjamin Paulin of the Dover-Sherborn Patch reports that Massachusetts has passed legislation that modifies current laws governing cases of habitual criminals, giving them longer sentences. Under the new law repeat offenders will have to face 2/3 of their sentence as opposed to half before becoming eligible for parole. Habitual offender status is realized when an offender convicted of any two major crimes is convicted of a third major crime. Under the new law, upon the third offense the offender would be marked parole ineligible altogether and imprisoned for the maximum term provided by law.

DNA Evidence Solves 13-Year-Old Cold Case Murder Mystery: Thirteen years ago, ten-year-old Anna Palmer was found dead on the front porch of her Salt Lake City home with five stab wounds to the throat and a severely beaten body. There were no witnesses, and detectives did not find any obvious evidence or apparent suspects. In 2009 detectives turned to Sorenson Forensics, which determined "that fingernails from the victim would be
something that might yield probative results." Palmer's fingernails were taken into the lab and tested. Sorenson Forensics was right. Analysts discovered DNA that belonged to Matthew Breck, who lived only a block away from the Palmers at the time of the murder. Breck was serving a 10-year sentence in Idaho for a sex-related crime involving a child when he was charged with the aggravated murder of Palmer. In August 2011 he was sentenced to life in prison. Sandra Yi from KSL (Utah) has this story.

After nearly a quarter-century, Junior Haddon still grieves for
his son Nolan.

Nolan Haddon died at Eastern Idaho Regional Medical Center on
March 17, 1987, after lying overnight in a walk-in cooler at the
Idaho Falls convenience store where he worked as a clerk. He had
been shot five times, and his spinal cord had been severed.

His killer, Paul Ezra Rhoades, 54, is set to die at 8 a.m.
Friday by lethal injection.

Yesterday, the Ninth Circuit denied Rhoades's stay application on the lethal injection claim yesterday. Today, the same court denied his application to hold his case for the Supreme Court's decision in Martinez v. Ryan. Even if Martinez wins his case, his case is sufficiently different from Rhoades's that it is highly unlikely any rule established there would apply.

Update: KPVI's live blog reports the execution is delayed 55 minutes but still on (i.e., scheduled for 8:55 a.m. MST). Supreme Court's stay denials are here and here. No dissent is noted.

Yesterday, the House passed H.R. 822, the National Right-to-Carry Reciprocity Act of 2011. This bill would allow a person licensed to carry a concealed firearm in one state to do so in another state, notwithstanding the laws of the other state.

As an all-weather federalist, I have to disagree with some of my gun-toting friends here.* Concealed carry is an issue that each state should decide for itself.

Cop Killer Gets Death Penalty: Hudson Sangree of The Sacramento Bee reports Yolo County jurors recommended Wednesday that Marco Antonio Topete be sentenced to death for killing Sheriff's Deputy Jose Antonio Diaz in June 2008. After being pulled over on suspicion of drunk driving, Topete fled from the traffic stop and a car chase ensued. Topete led Diaz down a rural dirt road where he left his car in the dark and took cover behind a house. Topete fired 17 rounds in 4 seconds from an AR-15 assault rifle at Deputy Diaz, who had his back turned. Topete, a member of the Norteño street gang, told his wife in a jailhouse interview that he shot Diaz because he was mad about being pulled over. Topete has his 4-month-old daughter in the car during the chase, and prosecution evidence showed he fired toward his own car when he opened fire on Diaz. At the time of the killing, Topete was on parole after serving 12 years in state prison for a local gas station shooting. Yolo Superior Court Judge Paul K. Richardson set a sentencing date for January 12.

Texas Executes Convicted Child Killer: The Associated Press reports Guadalupe Esparza, 46, was put to death by lethal injection in Texas Wednesday night. In 1999, Esparza snatched 7-year-old Alyssa Maria Vasquez from her apartment, raped and strangled her, and left her battered body in weeds behind a convenience store. Police found blood-spotted clothing that belonged to Esparza in a trash bin at his apartment. DNA testing linked semen found on Vasquez's body to Esparza. Diana Berlanga, the victim's mother, upon seeing Esparza on the gurney with needles in his arms said, "he's going to get what he deserves."

NY Woman Drives Stolen Car to Court Date: The Associated Press reports Pamela D. Copes of Albany, New York drove a stolen car to court and parked it in the police parking lot at the town's Public Safety Center, which also houses the court. The car, which was equipped with a global positioning system and reported stolen Wednesday by officers in Albany, was found by neighboring Colonie police in their department's parking lot. Copes had a court appearance for two previous arrests that included charges of fleeing police and reckless driving. She now faces a felony charge of third-degree criminal possession.

Tomorrow the California Supreme Court will announce its answer to the question certified by the Ninth Circuit regarding whether the proponents of an initiative have standing to defend it when executive officers fail to do so. Notice is here. As noted in the prior post, CJLF takes no position on the underlying marriage controversy, but I do think the proponents should have standing to make their case for the initiative.

Court Rules You Can't Use Cell Phone At Red Light: Bob Egelko of The San Francisco Chronicle reports the First District Court of Appeal in San Francisco ruled Monday that a driver who is stopped at a red light is technically "driving" and still prohibited from using a handheld cell phone. Carl Nelson of Richmond, CA had appealed the $103 citation that he received in 2009 when a police officer saw him dialing a phone and holding it up to his ear while at a stoplight. Nelson argued that the 2007 state law that prohibits using handheld devices only applies when a vehicle is in motion. In the 3-0 ruling, Justice James Lambden said the law was intended to cover "persons driving on our public roadways, who, like (Nelson), may pause
momentarily while doing so in order to comply with the rules of the
road." Nelson's lawyer said the ruling disregarded the state Supreme Court's definition of driving from a 1991 case and would appeal the decision to the state's high court. The 1991 ruling involved a man arrested for drunken driving after police found him asleep at the wheel of a car that was legally parked with its motor still running. His arrest was thrown out by the state Supreme Court, which ruled that driving requires "proof of volitional movement of a vehicle."

California Medical Parolee May Be Returned For Lewd Acts: Don Thompson of The Associated Press reports Peter Post, 33, a former inmate who was released November 3 under California's new medical parole law is back in custody and make have his parole revoked for committing lewd acts days after his release. Post was released to a long-term care facility in San Diego after being found to be permanently physically incapacitated. Post was returned to a 24-hour secure medical facility November 10 after exposing himself and committing a sexual act in front of female nurses at the private facility. Terry Thornton, a spokeswoman for the Department of Corrections and Rehabilitation, said Post's ability to commit the acts could mean he is still a public safety risk and may have physically improved enough to complete the rest of his 31-year sentence. Post will undergo a medical evaluation before the board rules on whether to revoke his parole or not.

California Jails Getting More Prisoners Than Expected: Richard Winton and Andrew Blankstein of The Los Angeles Times report the number of state prisoners being diverted to county jails is significantly higher than officials had estimated, prompting counties to speed up efforts to make arrangements for the extra inmates. Los Angeles County has booked over 300 more inmates by now than projected, and Orange County has booked more than double the amount of inmates the state had estimated. According to an internal report by the district attorney's office, Los Angeles County has the funding to open an additonal 1,800 beds but expects to receive 8,000 state prisoners in the next year. In Kern County last week the Sheriff's Department freed 50 parole violators because they had no jail beds for them. Riverside County Sheriff's Chief Deputy Jerry Gutierrez said his jail will be full by January.

The WSJ notes in an editorial today on the Occupy [Whatever] movement, "And so, one by one, they are being evicted now. In Oakland, Portland, Salt Lake, Atlanta, Chicago, Detroit, and not least, our two favorites--Occupy Youngstown and Occupy Whitehorse, Yukon (with which, conceivably, there might have been broad sympathy)."

On the front page of the WSJ there is a news story on the New York eviction, but the accompanying picture (apparently not online) is priceless. An occupier holds a sign saying, "Please help. Beaten and arrested last night. Came home to an empty park. Lost everything. P.S. I love you." (All caps omitted.) "Home" you say? By what right do you make a park your home? Empty park? Surely you had to know that it would be cleared eventually. Lost everything? Why were you foolish enough to take anything of value there? Was your goal to confirm that the occupiers are the whining, spoiled brats that many persons of sense have thought they were all along? Congratulations. You succeeded.

James Taranto considers Bloomberg's actions "better late than never." "'Health and safety conditions became intolerable,' the New York Times quotes the mayor as saying--though why it took him two months to figure that out is left unexplained."

Yet there may be value, intended or not, in the delay. It is suggested in this column by SF Chrontrarian Debra Saunders.

The US Supreme Court denied a stay of execution to Ohio triple murderer Reginald Brooks. Four times. Orders are here, here, here, and here. No dissents are noted.

Kantele Franko reports for AP that the execution proceeded. There is no question of identity of the perpetrator in this case. Brooks "fatally shot his three sons while they slept in 1982, shortly after his wife filed for divorce."

Prosecutors acknowledged Brooks was mentally ill but disputed the
notions that it caused the murders or made him incompetent. They said he
planned merciless killings, bought a revolver two weeks in advance,
confirmed he'd be home alone with the boys, targeted them when they
wouldn't resist and fled on a bus with a suitcase containing a birth
certificate and personal items that could help him start a new life.

The Court also denied a stay to Florida triple murderer Oba Chandler. Matthew Hendley has this post at the Broward-Palm Beach New Times. The post incorrectly says the stay was denied by Justice Thomas. Standard procedure is for stay applications to be submitted to the Justice assigned to the circuit, who then regularly refers the application to the full Court for decision, except in emergencies. That is what happened in this case.

Update: Alan Johnson reports in the Columbus Dispatch, "Those witnessing the execution behind glass about 10 feet away gasped but said nothing as
Brooks first glared at and 'flipped off' his ex-wife, the mother of the three children he murdered
nearly 30 years ago after she filed for divorce."

Two Executions Scheduled For Today: Brent Kallestad and Tamara Lush of The Associated Press report (registration required) Oba Chandler, 65, is scheduled to die by lethal injection today at the Florida State Prison. Chandler was convicted in 1994 for killing a woman and her two daughters while they were on vacation in Florida. In Ohio, Alan Johnson of The Columbus Dispatch reports Reginald Brooks, 66, is scheduled to be executed this afternoon for killing his three son ages 11, 15, and 17 in 1982. Brooks used a gun he had recently purchased to kill his sons while they slept in their beds.

Stay of Execution Denied For Convicted Idaho Killer: Laura Zuckerman of Reuters reports a federal judge Monday refused to grant a stay in the execution of Paul Ezra Rhoades, 53, who is scheduled to die by lethal injection Friday in Idaho for murdering two women. Rhoades sought a stay while his legal challenge that Idaho's method of execution breached his constitutional protections against cruel and unusual punishment was being weighed by the courts. U.S. Magistrate Judge Ronald Bush said there was little chance that Rhoades would prevail in his lawsuit. It will be Idaho's first execution in 17 years.

Man Who Volunteered DNA Convicted of Three Murders: The Associated Press reportsFrancisco Acevedo, 43, was convicted Monday of killing three women in New York after giving a DNA sample as part of an optional parole application. Acevedo was in prison on a drunk driving charge in 2009 when his blood sample was matched to the three killings. Acevedo was convicted for the 1989, 1991, and 1996 murders where each woman was found naked, bound at the hands, strangled, and facing upward. His sentencing is scheduled for January 17, where he could face a prison term of 75 years to life. Justice On Hold: Jim Mustian of the Ledger-Enquirer has this article (registration required) about the case of James Douglas Andrews, 42, who has served 19 years on death row in Georgia without filing an initial appeal. Since 1993 Andrews' initial motion for a new trial has been held up in Muscogee County Superior Court. According to Anne S. Emanuel, a death penalty expert and professor of law at Georgia State University College of Law, "until that motion is ruled upon, the clock on an appeal will not start running." Andrews is the oldest of three cases (1994, 1998) that remains similarly stalled at step one of the appeals process and have not filed mandatory appeals to to the Georgia Supreme Court.

Adam Liptak has this article in the NYT on the subject of law professor amicus briefs and Richard Fallon's much-discussed essay. I have a personal interest in this part of the story:

In his essay, Professor Fallon discussed a second brief he had declined to join. It concerned "a highly complex question of federal jurisdiction over a habeas corpus petition filed by a prison inmate" and was written by Michael C. Dorf, a law professor at Cornell.

Professor Fallon said the brief was in all likelihood
"exemplary in all respects." But he said he would not sign that one,
either, on the refreshing ground that he had not done the required
reading.

Lyle Denniston has this post on SCOTUSblog describing the US Supreme Court cases to be argued in January. There are no criminal cases. Zip. There are two crime-related immigration cases on the last day.

I learned my constitutional law at Stanford Law School. The School is dominated by left wing professors, as most are, but I have to admit the education was pretty good. For the tuition they charge, it sure should have been. In any event, I have to think my Con Law class was better than the one taught by Professor Michael Avery.

Death Row Inmate Gets Parole Hearing by Mistake: Brett Barrouquere of the Associated Press reports a death row inmate was allowed to argue his release from prison by mistake. The Kentucky Department of Corrections said the Parole Board erred when it allowed a parole hearing for John Mills. Initially the Knox County Circuit Court threw out the death sentence but Mills was still under a death sentence when the hearing took place because his appeal was pending before the Kentucky Supreme Court. The board voted 2-0 to defer action on Mills for five years. That decision has since been voided and Mills record has been corrected, but had they voted in Mills favor he could have been released. The Department of Corrections spokesman Todd Henson said they are looking into the mistake and it is being addressed. Mills was sentenced to death after the murder of 79 year old of Arthur Phipps. .

Dying Man's Blinks Key Testimony: Tina Susman of the Los Angeles Times reports an Ohio jury will get to see testimony from a dying man's blinks. Ricardo Woods shot David Chandler in the head and neck last year but Chandler stayed alive long enough for investigators to interview him. Chandler was unable to speak or move but was able to communicate with investigators by blinking his eyes. When shown a picture of Woods, Chandler blinked three times to identify the shooter. Chandler was shot on October 28, 2010 and died two weeks later from his injuries. Ohio Judge Beth Myers watched the video and ruled in September that it could be shown to jurors. Myers stated she found it reliable and and said that it wasn't made by routine involuntary eye blinking, but by pronounced, exaggerated eye movements.

Men Sentenced in Execution-Like Slayings: David Hanners of Pioneers Press reports two men convicted in June of executing three people were sentenced today to three consecutive life sentences by a federal judge in Minneapolis. When arguing for the sentence the prosecuting attorney stated, "The defendants slaughtered
three different human beings. Each victim deserves to have
the defendant be punished for the crime committed against him or her."
The issue before the federal judge was whether to have the sentences run concurrently or consecutively. The judge said, "Each victim deserved a distinct sentence for the crimes and
that making them concurrent would amount to cutting the defendants a
bargain they didn't deserve."

Update (11/16): John Elwood notes these cases in his Relist Watch at SCOTUSblog. Regarding Lambert, Maxwell, and Cross, he says, "After last week's per curiam in Bobby v. Dixon, 10-1540, and the prior week's in Cavazos v. Smith, 10-1115, further summary action (or perhaps a dissent from the denial of cert.) may be in the works."

Let us pause in our discussion of the meaning of justice in a free
society to thank those who make a free society possible. High-toned
declarations and proclamations would be nothing but scraps of paper
without the sacrifice of those who fight for freedom against the forces
of totalitarianism. Thank you, from the bottom of our hearts.

In addition, we are on a special mission this Veterans' Day. On October 17, the Supreme Court took up the constitutionality of the Stolen Valor Act. See prior post here. The Ninth Circuit, true to form, held that there is a constitutional right to lie about being a decorated war hero.

Congress did not think so when it found,

"Fraudulent claims surrounding the receipt of the Medal of Honor, the distinguished-service cross, the Navy cross, the Air Force cross, the Purple Heart, and other decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals." 120 Stat. 3266 (2006).

We at CJLF are presently working on an amicus brief arguing for the constitutionality of the act. I am pleased to report that we will be joined in this brief by the Legion of Valor.

When does the law require a person to report a crime by someone else? That question is getting renewed attention in the wake of the Penn State scandal.

At common law, there was a crime called misprision of felony. Most states have abolished it. The federal code still has it, 18 U.S.C. §4, but that statute requires an element of concealment as well as nonreporting.

A wide variety of people whose work involves children are required to report child abuse under various state and federal laws.

Everyone in mental health knows the Tarasoff rule, a case law tort rule requiring psychiatrists, etc. to break confidentiality and warn the target of a specific threat by their patient. Too bad our profession will not accept for itself the same kind of duty to report and limit on confidentiality that it imposed on another.

An explosion of criminal prosecutions in the nation's overextended
federal courts has left civil litigants from bereaved spouses to
corporate giants waiting years for their day in court.

The logjam, prompted particularly by criminal cases related to drugs
and immigration, as well as by the proliferation of more-obscure federal
criminal laws, threatens the functioning of the nation's judicial
system, say some judges and attorneys.

"We need the resources to do both" civil and criminal law, says W. Royal
Furgeson, a senior federal judge in Dallas. If decisions on contracts,
mergers and intellectual-property rights "can't be reached through quick
and prompt justice, things unravel for business."

But everybody needs more resources, so the first thing we should do is look at the federal courts to see what they are doing that can be done by state courts or does not need to be done at all.

When the Supreme Court decided that the right to bear arms extended to individuals, not just organized militias, in the Hellercase in 2008, many people on the defense side were excited that they could use this to argue against felon-in-possession laws. The fact that the Heller Court expressly said its decision did not extend to invalidate those laws strangely failed to dampen their enthusiasm. A long string of defeats for that argument since Heller followed.

As applied to federal laws regulating who can own what, it always seemed to me that the Court's cautiously narrower view of the Commerce Clause in recent years was the more vulnerable point.

In Scarborough v. United States, 431 U.S. 563 (1977), the Supreme Court said that the mere fact that the gun had at some point moved in interstate commerce was enough. But is it still enough today, with the changes in Commerce Clause jurisprudence since then?

Conor McEvily, a recent graduate of Georgetown Law, has a student note forthcoming in Georgetown Law Journal considering Scarborough as applied to the federal body armor law. An advance version is available on SSRN. The abstract follows the jump.

AG Pulls Out of 34 Drug and Gang Units in California: Don Thompson of The Associated Press reports the Department of Justice announced it is ending its involvement with 34 of the 52 drug- and gang-fighting task forces in California next year due to budget cuts. Larry Wallace, chief of the department's Division of Law Enforcement, says the state will continue running 18 task forces using federal money, but it is unclear whether the other 34 will be able to continue. The task forces were started by the Department of Justice in 1976 to coordinate federal, state, and local law enforcement efforts. Officials have said the task forces are vital in some areas where government budgets are tight and law enforcement agencies are small, and Wallace says many local law enforcement agencies are not well equipped to take over the state's role. The Bureau of Narcotic Enforcement, which runs the task forces, and the Bureau of Investigation and Intelligence will be virtually eliminated. A spokesman for the Department of Finance says it's too early to tell whether some of the money could be restored in the budget California Gov. Jerry Brown will propose at the beginning of next year. Inmate Wins New Trial by Arguing Sentence Was Too Light: Steve Schmadeke of The Chicago Tribune reportsBenny Deanda Jr, who pled guilty to murder in exchange for a 30-year prison sentence, has won a new trial in Illinois using the legal argument that his sentence was too lenient. By law, the minimum sentence Deanda should have received was 35 five years in prison. He wants a new trial so that he can present a self-defense case for the 2001 killing of a 16-year-old boy. If Deanda is found guilty at trial, he could face up to life in prison.

Execution Stayed for Virginia Inmate: Tim McGlone of The Virginian-Pilot reports tonight's scheduled execution of Anthony Juniper in Virginia has been stayed by a federal judge. Juniper was convicted of killing his ex-girlfriend, her two children, and her brother in 2004. A federal judge in Richmond issued a 90-day stay after one had been denied by the U.S. Supreme Court on Wednesday. Juniper's lawyers petitioned directly to the U.S. Supreme Court because they have exhausted their state-level appeals. The AG's office did not oppose blocking Juniper's execution so that he could begin his federal appeals process, but it does oppose his request for a new hearing.

Yesterday was election day in a few scattered places around the country. One of them is San Francisco, where both the mayor and the DA were appointees completing the terms of predecessors elected to statewide office.

DA George Gascon has an interesting past. It includes the one characteristic that some thought might be unforgivable in the City by the Bay. For most of his adult life he was (gasp! horrors!) a Republican. He's not now, of course. He also once said he would seek the death penalty in an appropriate case. He has backed off on that as well.

Yet despite these past forays into the forbidden territory of sense, he was elected handily. The count is preliminary, but the margin is so large there is no real doubt. SF's new ranked-choice election method didn't really change anything in this case.

Victims of crime and witnesses who have testified against the perpetrators often wish to be notified when the perpetrator is going to be released or is going to be considered for parole. The VINELink website provides links to register for these notifications in most states.

In an epic battle that illuminates how far things have gone, two groups are battling for "ownership" of a Sacramento public park.

On the one side are our new friends, the Occupy X movement (X being anywhere without the backbone to expel them, which evidently means everywhere). I can't tell who exactly is in this movement, but I gather it's an amalgam of so-called students who applied for a boatload of loans and now demand the right to welsh on them; dopers; small time criminals (small time so far, anyway); and people who think police cars and local homeowners' doorsteps are Porta-Potties.

The surprise is the group now speaking out in opposition. Although the Occupy X movement got its start opposing "corporate greed" and speaking up for the little guy, the opposition turns out to be.....the little guy.

Specifically, the group in opposition are a bunch of vagrants (in modern lingo, the "homeless") who had previously had the park to themselves. Here's the story.

P.S. Hey Kent, good luck getting to work.

P.P.S. Our friends at Powerline are doing a fantastic job covering the Occupy X movement around the country. See their descriptions, e.g., here, here and here.

If you are in the Boston area, check out this event sponsored by the Boston Lawyers Chapter of the Federalist Society.

Participants include former AG Michael Mukasey, Carol Rose of the Mass. ACLU, Arthur Herman of AEI, and Dean Reuter of the FedSoc, co-editor of the book Confronting Terror. Former US Attorney Michael Sullivan will moderate.

Florida Inmate Files Lawsuit Over Soy-Based Foods: United Press International reports Florida inmate Eric Harris is suing the Department of Corrections, claiming that the soy-based foods served to prison inmates should be considered cruel and unusual punishment. Harris says the processed and blended soy foods have caused him painful gastrointestinal cramping and threaten the state of his immune and thyroid systems. In November 2009 Florida prisons began serving a "meat" mix to prisoners of 50% soy and 50% poultry. The Weston A. Price Foundation in Washington, which advocates about the dangers of soy food, paid for the lawsuit Harris filed in Circuit Court in Tallahassee. A spokeswoman for the Department of Corrections estimates that if soy products were eliminated, the cost of inmate meals would double for taxpayers. In previous cases U.S. courts have concluded that prison food does not necessarily need to look or taste good as long as it is nutritional and "adequate to maintain health."

Clemency Denied for Condemned Idaho Inmate: Rebecca Boone of The Associated Press reports The Idaho Commission of Pardons and Parole will not consider a clemency request from Paul Ezra Rhoades, who is scheduled to be executed by lethal injection on November 18. Rhoades was sentenced to death for murdering two women in 1987, and was also given a life sentence for killing a man the same year. Rhoades has exhausted all his appeals, and filed a lawsuit against the state of Idaho last month regarding the state's method of execution. If his execution is carried out, he will be only the second person executed in Idaho since 1957.

Georgia Considers Delayed Death Penalty Case: Andria Simmons of The Atlanta Journal-Constitution reports the Supreme Court of Georgia is considering whether a six-year delay in bringing a death penalty defendant to trial violated the defendant's right to a speedy trial. Defense attorney Christopher W. Adams argued Monday that the charges should have been dismissed against Khanh Din Phan because a breakdown in the public defender system has left the case chronically underfunded. Phan is charged with the execution-style murder of Hung Thai, 37, and his 2-year-old son. Phan also shot Thai's wife, but she survived and later identified him as the killer. Adams said he represented Phan for years without getting paid and still has not received the money he needs to hire experts. Adams also argued that when a trial judge removed him and his co-counsel from the case and replaced them with state Capital Defender's Office employees, it violated Phan's right to effective counsel. Prosecutors say Adams was paid in full last year and that the delays in the case are the fault of the defense attorneys who requested numerous continuances and filed the pretrial appeals.

After the argument in Greene v. Fisher, I wrote this post on the confusion between (1) the nonretroactivity rule of Teague v. Laneand (2) the rule of generally not relitigating in federal court issues already decided by the state court (with 2 exceptions) in 28 U.S.C. §2254(d), part of the Antiterrorism and Effective Death Penalty Act of 1996.

In Greene, the petitioner's argument, in essence, was that whether the state court decision was clearly wrong (one of the exceptions to §2254(d)) should be judged as of the same date as the date for retroactivity of new rules under Teague. As I explained in the prior post, these two rules are entirely different in nature, even though they often point to the same result, and there is no good reason for making them turn on the same date.

Back in 2000, in Williams v. Taylor, we came within one vote of having §2254(d) minimized to little more than a codification of Teague. Today, I am pleased to report, all of the nine Justices of Supreme Court are clear on this point. The unanimous opinion of the Court says,

We have explained that AEDPA did not codify Teague, and that "the AEDPA and Teague inquiries are distinct." Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). The retroactivity rules that govern federal habeas review on the merits--which include Teague--are quite separate from the relitigation bar imposed by AEDPA; neither abrogates or qualifies the other.

Note well the characterization of §2254(d) as a relitigation bar, a term first used by the Supreme Court in Harrington v. Richter last term. See also the previous post and my law review article, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998). This is the key to understanding §2254(d).

The Texas Court of Criminal Appeals has stayed the execution of Hank Skinner. John Schwartz has this story in the NYT:

His lawyers had not requested DNA testing on all the evidence available
at trial out of fears that the results would go against him. After the
state enacted a broad postconviction DNA testing law in 2001, Mr.
Skinner began a string of appeals that reached the United States Supreme
Court. The Texas Court of Criminal Appeals on Monday cited recent
changes in Texas law on DNA testing, and said it would be "prudent" to
"fully review the changes in the statute as they pertain to this case."

Question: What is more disgusting than a spoiled Hollywood celebrity who thinks she can thumb her nose at the law, and nothing serious can be done to her?

Answer: The realization she may be right.

Greg Risling of AP reports on Lindsay Lohan's latest revolving door visit to the LA County Jail. The judge got serious and ordered that she spend 30 days in lockup. She was there 4 hours and 47 minutes. If my math is correct, that's a 99.3% discount.

"As pathetic as it sounds, this is not necessarily special treatment,"
said Adam H. Braun, a defense attorney who was not involved in the case.
"It just depends how full the jail is when someone surrenders. If it is
filled to capacity or nearly full, offenders like her are the first
ones let go so more serious offenders can be held."

Lack of consequences for misbehavior is the first step toward dissolution of society. Sure, we have to give priority to violent offenders. But offenders of all kinds need to know there are real consequences. Few minor offenders should actually go to jail, but a realistic threat of jail needs to be there to enforce compliance with the lesser sanctions. At present, it just isn't there for too many cases.

Supreme Court Upholds Death Sentence: Allan Turner of The Houston Chronicle reports the U.S. Supreme Court has rejected convicted Houston killer Duane Buck's request to overturn his death sentence. The Supreme Court stopped his September 15th execution in order to decide whether to review the case. Buck was sentenced to death for the murder of his former girlfriend, Debra Gardner and her friend, Kenneth Butler. He also shot his sister, Phyllis Taylor, who survived. The issue before the court was testimony in the trial's punishment phase. Psychologist Walter Quijano on cross examination said being black could contribute to to Buck's "future dangerousness" in prison.

Supreme Court to Hear Case on Warrantless GPS Tracking: Mark Rockwell of Government Security News reports the Supreme Court will hear arguments on Tuesday, November 8th regarding whether or not warrantless uses of GPS tracking devices violates the Fourth Amendment of unlawful search and seizure. Legal experts have said this case could be a landmark in how law enforcement is allowed to use advancing technology. The case they are reviewing is one where the FBI and local law enforcement were tracking a suspected drug dealer. They put a tracking device on the suspects Jeep. The device gave law enforcement the suspect's location seven days a week for four weeks. The Court must decide whether the tracking was a "search" and whether the installation of a GPS tracking device on a private vehicle is a "seizure." Law enforcement lawyers argue warrantless GPS tracks public behavior that is observable by anyone not using the technology.

A couple of notable cases among the certiorari petitions granted and denied:

In Buck v. Thaler, defendant claimed a constitutional violation based on comments about race by an expert witness. One small problem, as pointed out by Justice Alito joined by Justices Scalia and, notably, Breyer:

Dr. Quijano's testimony would provide a basis for reversal of petitioner's sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. Quijano was a defense witness, and it was petitioner's attorney, not the prosecutor, who first elicited Dr. Quijano's view regarding the correlation between race and future dangerousness.

The court took up the juvenile LWOP cases, previously noted here. A simple grant after so many relists is unusual, but it does happen.

Once again, the US Supreme Court has summarily and unanimously reversed a circuit divisible by 3 in a capital case for failing to obey the mandate of Congress to respect the finality of state court decisions on debatable questions. From Bobby v. Dixon:

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling onthe claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). The Court of Appeals for the Sixth Circuit purported to identify three such grievous errors in the Ohio Supreme Court's affirmance of respondent Archie Dixon's murder conviction. Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fairminded jurist could agree with that court's decision, the Sixth Circuit's judgment must be reversed.

As I have noted previously, Ohio has had a leading role in carrying out justice in the worst murder cases. The state was the first to successfully implement a single-drug lethal injection protocol, and in 2010 it carried out 8 executions, second only to much-larger Texas. Executions have been on hold there recently because of a surprising order issued by US District Judge Gregory Frost in July. That hold is apparently over now, and Judge Frost has denied a request to stay the next scheduled execution. Andrew Welsh-Huggins has this story for AP.

Ed Whelan reminds us that today, November 4, is the 25th anniversary of one of the great moments in California elections. Ed notes:

What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry ("Moonbeam") Brown, California's governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

Now, the Moonbeam is back, and has already appointed the new Rose Bird, Prof. Goodwin Liu, to the Court from which the voters removed her. Prof. Liu, for whatever else may be said of him, is a creative man, and, given his youth, may set a new record by voting against the state in sixty-two straight capital cases.

Only time will tell.

To Kent and our readers who live in California, my condolences, and I'll be happy to help you look for a house here in Virginia.

In Florence v. Board of Chosen Freeholders, No. 10-945, the question before the Supreme Court (as phrased by the plaintiff) is, "Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances." But there is a backstory here about a nasty fight between two lawyers for the plaintiff, reported by Jess Bravin in the WSJ.

The dispute between Susan Chana Lask and Elmer Robert Keach III sheds
light on a little-known but lucrative legal niche, and shows why a
decisive ruling by the Supreme Court is sometimes the last thing lawyers
want.

* * *

Mr. Keach said he and his colleagues have racked up $36 million in
class-action settlements with jails across the Northeast and as far away
as Texas that routinely strip-searched inmates. Roughly 30% of that
went to attorneys' fees.

Ms. Lask may have ruined it all, Mr. Keach said, by bringing a case
before a conservative-led Supreme Court, where several justices
suggested at arguments last month that blanket strip-search policies
might be constitutional.

Convicted 'Southside Slayer' Faces Death Penalty: AP reports in the Washington Post that serial killer Micheal Hughes, 55, was convicted Thursday of three counts of first-degree murder with special circumstances for strangling two prostitutes an a 15-year-old in a Southern California killing streak that spanned from the 80s-90s. Hughes was serving a life sentence for killing four women in 1992-3 when he was charged with the additional murders. Authorities said DNA evidence linked Hughes to the killings. Prosecutors will seek the death penalty when the sentencing phase of his trial begins Monday.

Maryland High Court Upholds Conviction For Child Abuser: Peter Hermann of the Baltimore Sun reports that Erik Stoddard convicted of the 2002 fatal beating of three-year-old Calen Faith Dirubbo was denied a chance for a fourth trial by the Maryland Court of Appeals, who decided to uphold the 40-year prison sentence the child abuser. Stoddard was first convicted of second-degree murder in March 2003 and has been appealing for nearly a decade. According to police, Stoddard beat the child to death because he was unable to toilet-train her.

Lawyers Stabbed: Druggie Convicted: Joshua Monson, 28, who forfeited his right to legal counsel after he stabbed his attorneys with writing tools was convicted of drug possession Thursday. Surrounded by Snohomish County corrections officers and confined in a restraint chair, Monson told the jurors he'd been framed. Monson still faces a second-degree murder charge connected to the Jan. 2 shooting of Brian Jones, and two counts of fourth-degree assault for the attorney stabbings. AP reports in the Seattle Times.

Arkansas Supreme Court Rules For Criminal Code Review: Andrew Demillo of AP reports on the Arkansas Supreme Court's decision on Thursday to review the state's criminal code because of conflicting laws regarding habitual offenders. Chariel Ali Glaze was convicted as a habitual offender and faced a sentence of 20-30 years from jurors, when he argued that a more recent law required a sentence of between 5-40 years. The court found the conflict between the two laws "irreconcilable." Justice Robert L. Brown wrote in the opinion, "Even though this court has found no repeal by implication in several
recent cases, the argument is still consistently being raised by
defendants, making at least a review, if not a revision, of our criminal
code warranted."

Kent was hopeful that Ohio, for the first time in recorded history, would put together a commission to "examine" the operation of the death penalty that wasn't stacked with either open or closet abolitionists. After just a couple of days, the reports out of it seem to squelch that hope.

The head of the panel, a retired state appeals court judge named James Brogan, got things started in the usual way, as these things go. He said, according to news reports, that he's worried about the discretion state prosecutors have in deciding whether to pursue a death sentence at all:

"Why is it that in one county the prosecutor seeks it on many more occasions than another prosecutor," Brogan said. "Is it because urban crime is so much more serious in a larger city than in a rural community?"....

Brogan said the committee should review the role of evidence in death penalty cases, and he questioned whether the standard of certainty should be changed to "beyond all doubt" instead of "beyond reasonable doubt."

"I am terribly concerned about whether in fact the death penalty is properly applied In this state and I hope we all ask the hard questions that need to be asked," Brogan said.

The hard question that actually ought to get asked, but won't be, is why the will of the people and the judgment of the jury is frustrated so often and for so long over procedural wrangling that a serious system could and would resolve in half the time. And, for that matter, why procedural wrangling so much occupies center stage when the prepossessing question ought simply to be: Do we have the right guy?

I never heard of Judge Brogan before, but if the news reports are accurate, he's just the latest in a long line of clueless, gutless jurists who want to play to the Elite Wisdom by ending the death penalty on the installment plan, even while pretending to respect the law.

I don't know whether there will ever be a death penalty commission that seeks honestly to improve the implementation of capital punishment rather than drive it into the ground, but, if there is, this one ain't it.

The Broken Windows Theory, famously advanced by our friends and advisors James Q. Wilson and George Kelling, contends that disorder in society, the small stuff, leads to higher rates of more serious crime.

In the Netherlands, Diederik Stapel of Tilburg University compiled data showing a connection between disorder and prejudice. That's an interesting variation. There is just one small problem with his data, though. He made it up.

Joel Achenbach has this post at the WaPo. Ewen Callaway of Nature magazine has this article, reprinted by Scientific American.

California's Death Penalty Ban Likely to Continue Into 2013: The Associated Press reports the moratorium on California's death penalty will likely extend into 2013. Government lawyers agreed to resume the court battle with the lawyers representing inmates no sooner than September. Due to the time it takes a judge to rule and the likelihood of appeals, any scheduled executions will be pushed back into 2013. Executions were halted nearly six years ago by a federal judge who found flaws in the state's executions process, which prison officials say they have revised. There are currently 720 inmates on death row in California. On Friday another judge in Marin County is scheduled to hear arguments regarding whether prison officials properly followed procedures when revising the lethal injection process.

Two of Infamous "Texas 7" Get Execution Dates: Michael Graczyk of The Associated Press reports two members of the "Texas 7" gang, who engineered the biggest prison escape in Texas history in December 2000, have been scheduled to be executed in February of next year. George Rivas and Donald Newbury were two of seven convicts who escaped from a south Texas prison. Two weeks later they fatally shot a police officer during their holdup of a sporting goods store and were caught in Colorado a month later, where one of the gang killed himself. The other six faced trial and were given the death penalty. Michael Rodriguez was executed in 2008. Rivas, 41, the mastermind of the breakout, will be executed by lethal injection February 29. Newbury, 49, is set to be executed February 1.

Pennsylvania Prisoners Smuggled Drugs Under Postage Stamps: Matt Coughlin of phillyBurbs.com (PA) reports three current prisoners and one former prisoner of Bucks County Correctional
Facility were charged for allegedly conspiring to smuggle drugs into the prison under postage stamps on letters mailed to the prison. The scheme unraveled when a letter leaving the prison was returned as undeliverable/return to sender. All incoming inmate mail is opened and checked for contraband. The returned letter written by an inmate to a man in Morrisville, PA stated he was getting Suboxone through the mail under large stamps, and said he could receive money orders straight from the prison. Suboxone is used to treat addiction to drugs derived from opium, and can come in the form of a film that dissolves on the tongue. The four men are charged with conspiracy, sending contraband to an inmate, possession of a controlled substance by an inmate, and related offenses.

Occupy Protests Continue to Escalate on West Coast: The Port of Oakland has reopened this morning after protesters blocked the entrances with dumpsters, illegally parked vehicles, and fencing Wednesday. Police say protesters threw metal pipes, chunks of concrete, and lit roman candles and molotov cocktails. Protester Monique Agnew, 40, said, "We go from having a peaceful movement to now just chaos." An empty building that formally housed a now closed homeless aid program was taken over by protesters, who set several fires that went as high as 15 ft. in the air. As stated in a New York Post editorial Thursday, "What began as a credible protest against bank bailouts, crony
capitalism and the like has, in large measure, been hijacked by crazies
and criminals." Terence Chea, Lisa Leff, and Terry Collins of The Associated Press have more on the story. In Sacramento, Andy Furillo of The Sacramento Bee reports most protesters who have been taken into custody are expected to demand jury trials, instead of paying their fines and going home. Darrell Parker, 52, a state IT worker, said Wednesday that "getting arrested was one way of showing the waste of police resources," and that now the goal of the movement is to stress the courts. Furillo nicknames this new movement "Occupy Sacramento Courtrooms."

As noted in yesterday's News Scan, the retroactive application of lighter sentences for those convicted of crack cocaine offenses began on November 1, with an intitial release of about 1800 crack offenders. The New York Times carried an accurate and reasonably balanced story about it. The story quotes yours truly as a dissenting voice.

The numbers are daunting. The Sentencing Commission has said that it expects 12,000 offenders will be eligible for release, and that the average amount of time to be deducted from their sentences will be slightly more than three years. In other words, we could easily wind up with 36,000 more man-years of these offenders on the street -- whereas, if the old law had been left in place, they'd be in jail. The average recidivism rate for crack is 30% or perhaps very slightly higher.

If my math is correct, that means that we'll have roughly 10,800 more future crack offenses coming up, and soon, than if the prior law had been left undisturbed. This is no small matter. The association between crack and gunplay is all too well documented, and, with gunplay or wihout, the drug is highly addictive and first class bad news.

My question is: Why, when we hear in such specifics about the alleged benefits of the forthcoming releases, do we not also and simultaneously hear about the additional crime to which they will almost surely lead? My other question is: If the public had been told loudly and up front that there would likely be 10,000 more crack crimes with the new regime, would that regime have come about at all? Or on such a scale?

One needn't be a partisan of one side or the other to be convinced that if we're going to be told about the benefits of X, we ought to be told with equal clarity and volume about its drawbacks. This is as true about the crack releases that begn yesterday as it is about anything else.

The collective tantrum known as the "occupy" movement continued its counterproductive activities in Oakland. Jill Tucker, Carolyn Jones, and Will Kane have this story in the SF Chron. Here is my favorite part:

About 5 percent of city employees called in to say they would be taking
either an unpaid furlough or paid vacation day, officials said. Head
Start programs, which remain open, are among the most disrupted of city
functions because the ratio of children to teachers is high, officials
said.

Right. To protest corporate greed and the real or imagined predations of the richest 1%, you disrupt an education program for poor children. That makes a lot of sense.

Inmate's Lawsuit Gets Cold Reception: According to Kansas City Star reporter Michael Doyle, prison inmate Richard Pollard's argument that his claim's of mistreatment in a privately run facility in Taft, California are matters of federal law, was met with skepticism by the Supreme Court Tuesday. The story covers oral argument in Minneci v. Pollard (transcript here) which involves the appeal of a Ninth Circuit ruling for Pollard which cited the 1971 Bivens decision as authority. Justices on both sides of the ideological divide seemed unconvinced that the state remedy was inadequate. "Our law is clear," said Justice Scalia. "if there is an adequate remedy, we don't invent one." Justice Elena Kagan seemed to agree, "if the true appropriate remedy, and the better remedy from your client's point of view, is a state law action, we should just say bring a state law (complaint)", she said.

Law Professors Submit Measure to Limit Three Strikes: Tracy Kaplan reports that an unnamed group of Stanford law professors has submitted a ballot initiative to limit California's "Three Strikes" sentencing law. The measure, called The Three Strikes Reform Act of 2012, is being marketed as a more modest reform than Proposition 66, a deceptive 2004 ballot initiative (called Restore Three Strikes) which was narrowly defeated by voters. The new initiative would allow the 25-to-life sentence to be applied to certain three-time violent or serious felons but would prohibit a third strike for most non-violent felonies. Proponents will need to collect over 500,000 signatures to qualify the measure for the ballot. It is unclear whether the new measure will have the support of the major financial backers of Proposition 66, which included George Soros, Jerry Keenan, John Sperling and Peter Lewis, who together contributed most of the $5,000,000 in support of that effort.

An eyewitness identification violates due process of law if the police manipulated the procedure to suggest that the suspect is the culprit. There are a number of Supreme Court cases on that point. But does the Due Process Clause of the Fourteenth Amendment reach more broadly, to impose a constitutional requirement of reliability on all eyewitness identifications, even if the police did nothing wrong? That was the issue before the Supreme Court today in Perry v. New Hampshire.

My previous post is here. CJLF's brief is here. The transcript of today's argument is here.

The case didn't seem that hard from the beginning, and today's argument tends to confirm that. Mark Sherman reports for AP:

A committee charged with examining possible changes to Ohio's death penalty law meets the first time this week.

Ohio Supreme Court Chief Justice Maureen O'Connor has convened the task force while making it clear the committee won't debate whether Ohio should have capital punishment.

The committee, to meet publicly on Thursday at the Ohio State Bar Association, includes veteran prosecutors who have long supported the death penalty, along with defense attorneys who have fought its imposition.

The committee also includes judges, lawmakers, a sheriff, academic experts and a representative of the state prison system.

Among the committee members are several prosecutors who are genuine supporters, rather than the usual token cherry-picked elected DA from the most liberal jurisdiction in the state, as is customary when putting together such committees. I also recognize on the roster Doug Berman, an academic who leans to the defense side but is not a hard-core death penalty opponent.

So is this an actual balanced committee that will really produce a useful report? If so, it would be a first in the nation. All the previous reports have been anti-death-penalty hatchet jobs by stacked committees. California's commission was such a joke that their very first action was to appoint one of the most strident anti-death-penalty partisans in the state as executive director. It was like watching a 49s-Raiders football game and seeing Al Davis trot out on the field as chief referee. The report was predictably worthless.

Is this committee really balanced? I don't know enough about the full roster to tell. A commission can have good people on it and still be stacked, as California's was. But there is enough here to hope that this time will be different.

WikiLeaks founder Julian Assange lost his battle against extradition Wednesday when Britain's High Court ruled that he should be sent to Sweden to face questioning over allegations of sexual misconduct.

The judgment was handed down by High Court judges John Thomas and Duncan Ouseley with Assange in attendance, wearing a dark suit and a Remembrance Day poppy.

* * *

Lawyers for the 40-year-old Australian are expected to seek permission
to appeal the decision to the Supreme Court, the highest court in the
land. The legal team must lodge an application within the next two
weeks, and make a case that a "point of law of general importance" is at
stake.

How nice. The man who facilitated the murder of people cooperating with us in the war against Islamofascism wears a Rememberance Day poppy. He appears to be rather selective in which antifascist fighters he chooses to remember.

There is also this hopeful note: "Last month, Assange said WikiLeaks faced an 'existential' crisis and
could close as early as January if it was unable to boost its financial
reserves."

Change in Crack Sentencing Means Early Release for Federal Inmates: Jessica Gresko of The Associated Press reports thousands of federal inmates will benefit from a change that goes into effect today which reduces recommended sentences for crack cocaine crimes so that they are more equal to the penalties for powder cocaine crimes. The Fair Sentencing Act passed by Congress in 2010 and signed by President Obama reduced the disparities in sentencing for future cases. This summer the U.S. Sentencing commission decided to apply the acts to inmates already serving time. The commission estimates about 12,000 inmates could benefit over the next several years, with an average of three years shaved off their sentences.

Arizona Serial Killer Convicted of Nine Murders: David Schwartz of Reuters reportsMark Goudeau, 47, dubbed the "Baseline Killer," was convicted Monday of killing nine people in Phoenix. His nickname is the name of a major street in south Phoenix along which many of his initial crimes took place. Goudeau was also convicted of 58 other counts, including kidnapping, sexual assault, child molestation, and armed robbery. According to prosecutors, Goudeau was responsible for 13 separate attacks on 33 people during a 13-month period. He is already serving a sentence of 438 years for sexually assaulting two sisters in a Phoenix park, one of whom was six months pregnant. The next phase in the trial will begin Wednesday, in which jurors will determine which, if any, "aggravating factors" may be considering in deciding whether or not Goudeau gets the death penalty.

Operation Boo In Effect for 18th Year in California: Dave Marquis of News10/KXTV reports "Operation Boo," the California Department of Corrections policy of heavily monitoring child sex offenders across the state on Halloween night, saw it's 18th year yesterday with scores of arrest and parole checks. Registered child sex offenders have a Halloween curfew between 5pm and 5am, must remain inside with exterior lights out, and may only open the door for law enforcement officials. The Department of Corrections is responsible for supervising about 11 percent of the over 92,000 sex offenders in California.

Appeals Court to Hear Arguments by Jared Loughner: The Associated Press reports a federal appeals court in San Francisco will hear arguments today on request from the lawyers for Jared Loughner to halt the forced medication of their client with psychotropic drugs. His lawyers also want his stay at a Missouri prison facility rescinded.

The key to understanding the correct outcome in Lafler v. Cooper rests, in my view, on understanding the difference between an outcome secured by a windfall versus one secured fair-and-square.

I accept that a defendant has the right to effective assistance of counsel at the plea bargaining stage. Bargaining is now the principal means through which charges are resolved, and thus ought fairly to be considered a stage of the prosecution covered by the text of the Sixth Amendment. The question is: Who pays the price if the defendant does not get effective assistance at that stage, and the matter comes up only after the public has paid the bill for a trial whose conduct and outcome are perfectly legal?

Trials are the method designated by the text of the Constitution for the resolution of criminal charges. Once the defendant gets such a resolution, he has received the principal item guaranteed him. It's difficult to understand why a person who gets a legal sentence after a fair trial has a claim enforceable against the government. In any other context, it's unheard of to punish one party for the fact that the opposing party got bad advice from his own lawyer about how to negotiate.